structural theory and members of supreme courts

• Define structural theory and how it can be applied to the Supreme Court

  A structural approach suggests that political outcomes are largely determined by the formal processes laid out within the political system. Therefore, structural theory can be used to understand the formal and constitutional arrangements in selecting members to the US and UK Supreme court.
• P1 (Point)


  Structural theory → US justices are nominated to the Supreme Court by the President → Presidents often choose justices who represent their political views and judicial philosophy → thus US Supreme Court becomes overly politicised.

  Compared to the nomination process of the UK Supreme Court → UK justices chosen by an independent selection committee known as the Judicial Appointment process created in April 2016 → fairer and more impartial system → removes affiliation with the Law lords → removes biased judgements and allows nominees to be based on merit alone
• P1 (Evidence)


  In the US Supreme Court → Republican presidents picking strict constructionist e.g., Trump → 2017 Neil Gorsuch and 2019 Brett Kavanaugh & 2020 Amy Barratt → Democratic presidents tend to pick loose constructionist → Obama's nomination of loose construction such as Sonia Sotomayor & Elena Kagan.

  In the UK → The Prime Minister has no say in the appointments of justices → removes a Supreme Court that may represents the views of those in power → Therefore, easier to hold the executive branch to account
• P1 (Explanation)


  Therefore, judgements with US Supreme Court tends to be either broadly Conservative or Liberal → because of justices being appointed based on their ideology. Compared to the UK, whose arrangement removes interference of the executive branch → makes it more neutral
• P2 (Point)


  In the US, the appointment process to the Supreme Court involves the legislature → in which the Senate Judiciary Committee have to hold a confirmation hearing and give a recommendary vote.

  In the UK, the legislature e.g. Parliament have no say in the appointment process of Justices → emphasises the separation of branches
• P2 (Evidence)


  The Senate Judiciary Committee play a major role in whether a nominee succeeds → evident in George W. Bush nomination of Harriet Miers, the Senate Judiciary found her unprepared and inadequate → faced heavy criticism from Republicans led her to withdraw. Whereas, in the UK, the Constitutional Reform Act 2005 → has allowed the judiciary to be physically and institutionally separated from Parliament, therefore, when candidates are chosen by the independent Judicial Appointment Commission → They are presented to the Lord Challenor (a government minister) → The confirmation process is less politicised than that of the US
• P2 (Explanation)


  The US legislature branch plays a major role in the US Supreme Court → reiterates the idea of the US Supreme Court being politicised especially if the Senate is from the opposition party can attempt to attack and embarrass the nominee rather than ask relevant questions.

  The UK Supreme court confirmation process further emphasises the separation of powers. → The process receives less media attention → Candidates/ nominees less likely to be attacked like Harriet Miers
• P3 (Point)


  Lack of qualifications required to be a Supreme Court justice in the US compared to the UK where specific career paths and qualifications are needed to be an eligible candidate for the selection of the Supreme Court.
• P3 (Evidence)


  In the US, it is not required for Justices to have any specific qualifications → This is evident in the 1941 appointment of James F. Byrne to the Supreme Court → he didn't attend high school or even go law school yet was able to be nominated to the Supreme Court. Whereas, in the UK, to be eligible for appointment, candidates must have served for either a minimum of 2 years in a Senior Judicial role or 15 years as either a barrister and solicitors (qualifying practitioner)
• P3 (Explanation)


  To be appointed to the US Supreme Court can be seen as easier due to lack of qualifications compared to US Supreme Court. Therefore, it can be argued that there is better chances of being appointed to US Supreme Court.